Saturday, January 12, 2002

BORROWING FILM CLIPS DEEMED A FAIR USE

January 12, 2002

BORROWING FILM CLIPS DEEMED A FAIR USE

Under U.S. law it is well recognized that a writer can quote from another writer’s copyrighted work. A reviewer, for example, can quote a short passage from a book that is being reviewed. The doctrine permitting this use is known as the fair use doctrine.While copyright principles apply to filmmakers and other authors who create copyrighted works, it has never been clear to what extent film clips can be borrowed under the fair use doctrine. The practice of many cautious producers is to license clips, even of very limited duration. Two recent federal cases shed some light on the issue, and they may encourage producers to forgo licensing short clips.

The plaintiff (P) in both cases was a person who had acquired copyrights to many movies produced by American International Pictures (AIP). In the first case, the P complained about the use of clips from AIP movies in a documentary about AIP titled “It Conquered the World” produced by the American Movie Classics (AMC) cable channel. While the P had initially agreed to accept a $36,000 license fee for use of the excerpts for cable exhibition, the P apparently changed her mind and ultimately declined to sign the license agreement. Instead, the P sought an injunction which the court refused to issue.The judge reasoned that AMC’s use of the clips would likely be considered a “Fair use.” The court stated, “Just as a parody” needs to mimic an original to make its point... and a biographer is permitted to quote his subject, so too a documentary about two film makers should be permitted to sparingly show clips of the subject’s works.Here the filmmaker took five clips ranging from 10 seconds to 54 seconds, with an average length of 26 seconds.

The second suit filed by the P was a result of the Arts & Entertainment (A&E) series “Biography.” A& E used clips from the AIP documentary in a piece about actor Peter Graves titled “Peter Graves: Mission Accomplished.” The program used 20 seconds of footage from a trailer that had been used to promote the exhibition of “It Conquered the World.” This excerpt amounted to less than one percent of A&E’s 70 minute program. The court dismissed the P’s case on a motion for summary judgment.These cases illustrate that filmmakers may be able, under the fair use doctrine, to take short excerpts from pre-existing films without licensing the footage. Of course, it never hurts to have a license, and there is no assurance that other courts will follow these decisions. The cases are Hofheinz v. AMC Productions, Inc., 147 F. Supp. 2d 127, 2001 U.S. Dist. LEXIS 1591 (E.D.N.Y. 2001); and Hofheinz v. A&E Television Networks, 146 F. Supp. 2d 442, 2001 U.S. Dist. LEXIS 8616 (S.D.N.Y. 2001).

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About Me

A veteran entertainment lawyer, arbitrator, expert witness and author, Mark Litwak has provided legal services or acted as a producer rep on more than 100 feature films. He is the author of 6 books including: Reel Power, Dealmaking in the Film and Television Industry (winner of the 1995 Kraszna-Krausz Book Award), Contracts for the Film and Television Industry, and Risky Business: Financing and Distributing Independent Film. He is also the author of the popular CD-ROM Movie Magic Contracts.
As a law professor, he currently teaches at the U.S.C. School of Law, and has previously taught at the Univ. of Puget Sound and Loyola Law Schools. He has been on the faculty at UCLA for 24 years. He has lectured for the American, California and Texas bar associations. A frequent speaker, he has lectured at many universities including Harvard, the American Film Institute, Columbia University and NYU. He has also presented movie industry seminars in England, Australia, South Africa and Canada.
Mark Litwak is AV®
Peer Review Rated by Martindale-Hubble and has been named a Superlawyer multiple times by the publishers of Law and Politics Magazine.